The Dual State
First thing we do, let's intimidate all the lawyers.
NYT (“With New Decree, Trump Seeks to Cow the Legal Profession“):
President Trump broadened his campaign of retaliation against lawyers he dislikes with a new memorandum that threatens to use government power to punish any law firms that, in his view, unfairly challenge his administration.
The memorandum directs the heads of the Justice and Homeland Security Departments to “seek sanctions against attorneys and law firms who engage in frivolous, unreasonable and vexatious litigation against the United States” or in matters that come before federal agencies.
Mr. Trump issued the order late Friday night, after a tumultuous week for the American legal community in which one of the country’s premier firms, Paul, Weiss, Rifkind, Wharton & Garrison, struck a deal with the White House to spare the company from a punitive decree issued by Mr. Trump the previous week.
Vanita Gupta, who as a civil rights lawyer and a former Justice Department official has both sued the government and defended it in court, said Mr. Trump’s memo “attacks the very foundations of our legal system by threatening and intimidating litigants who aim to hold our government accountable to the law and the Constitution.”
In response to criticism of the memo, a White House spokeswoman, Taylor Rogers, said: “President Trump is delivering on his promise to ensure the judicial system is no longer weaponized against the American people. President Trump’s only retribution is success and historic achievements for the American people.”
The president has long complained that Democratic-leaning lawyers and law firms have pursued what he calls “lawfare” in the form of investigations and lawsuits against him and his allies that he claims are motivated by politics. Since being sworn into office he has targeted three firms, but the new memo seems to threaten similar punishment for any lawyer or firm who raises his ire.
After Mr. Trump issued an order suspending security clearances for Paul Weiss lawyers, and sharply limiting their employees from entering government buildings or getting government jobs, the firm agreed to a series of commitments to get the president to cancel the order.
As part of the deal, the firm said it would provide $40 million in legal services to causes Mr. Trump has championed, including his task force to combat antisemitism.
The Guardian (“Trump ramps up retribution campaign against legal community“):
Trump ramps up retribution campaign against legal community
President ordered attorney general to refer partisan lawsuits to White House and recommend sanctions against firmsThe directives were outlined in a sweeping memo in which Trump alleged that too many law firms were filing frivolous claims designed to cause delays. It came after a week of setbacks, in which a slew of judges issued temporary injunctions blocking the implementation of Trump’s agenda.
Trump’s memo directed Bondi to seek sanctions against the firms or disciplinary actions against the lawyers. But imposing sanctions is up to federal judges, and perhaps in recognition of the uncertainty that his attorney general would prevail, Trump also ordered referrals to the White House.
“When the attorney general determines that conduct by an attorney or law firm in litigation against the federal government warrants seeking sanctions or other disciplinary action, the attorney general shall … recommend to the president … additional steps that may be taken,” the memo said.
The memo, as a result, created a formal mechanism for Trump to unilaterally decide whether to impose politically charged sanctions through executive orders that strip lawyers of the security clearances they need to perform their jobs or prevent them from working on federal contracts.
Multiple legal experts suggested the memo would theoretically allow Bondi to decide a particular lawsuit that triggered a temporary injunction was causing an unnecessary delay, and refer the firm that filed the suit to face the effects of a punitive executive order.
That could cause a chilling effect and lead to the volume of litigation against the Trump administration to decline, the experts said. Even if the lawsuits are in fact for a legitimate purpose, there’s fear that their representation could put them in the president’s cross hairs and endanger their legal practices.
Trump also directed Bondi to open a review into the “conduct” of lawyers and their respective law firms in litigation against the federal government reaching back to the start of his first term in 2017 – and recommend whether it warranted additional punitive actions.
Chicago law professor Aziz Huq, writing in the print edition of The Atlantic, thus presumably before the order’s publication, claims “America Is Watching the Rise of a Dual State.”
On September 20, 1938, a man who had witnessed the rise of fascism packed his suitcases and fled his home in Berlin. He arranged to have smuggled separately a manuscript that he had drafted in secret over the previous two years. This book was a remarkable one. It clarified what was unfolding in Berlin at the time, the catalyst for its author’s flight.
The man fleeing that day was a Jewish labor lawyer named Ernst Fraenkel. He completed his manuscript two years later at the University of Chicago (where I teach), publishing it as The Dual State, with the modest subtitle A Contribution to the Theory of Dictatorship. The book explains how the Nazi regime managed to keep on track a capitalist economy governed by stable laws—and maintain a day-to-day normalcy for many of its citizens—while at the same time establishing a domain of lawlessness and state violence in order to realize its terrible vision of ethno-nationalism.
[…]
As Fraenkel explained it, a lawless dictatorship does not arise simply by snuffing out the ordinary legal system of rules, procedures, and precedents. To the contrary, that system—which he called the “normative state”—remains in place while dictatorial power spreads across society. What happens, Fraenkel explained, is insidious. Rather than completely eliminating the normative state, the Nazi regime slowly created a parallel zone in which “unlimited arbitrariness and violence unchecked by any legal guarantees” reigned freely. In this domain, which Fraenkel called the “prerogative state,” ordinary law didn’t apply. (A prerogative power is one that allows a person such as a monarch to act without regard to the laws on the books; theorists from John Locke onward have offered various formulations of the idea.) In this prerogative state, judges and other legal actors deferred to the racist hierarchies and ruthless expediencies of the Nazi regime.
The key here is that this prerogative state does not immediately and completely overrun the normative state. Rather, Fraenkel argued, dictatorships create a lawless zone that runs alongside the normative state. The two states cohabit uneasily and unstably. On any given day, people or cases could be jerked out of the normative state and into the prerogative one. In July 1936, for example, Fraenkel won a case for employees of an association taken over by the Nazis. A few days later, he learned that the Gestapo had seized the money owed to his clients and deposited it in the government’s coffers. Over time, the prerogative state would distort and slowly unravel the legal procedures of the normative state, leaving a smaller and smaller domain for ordinary law.
Yet, Fraenkel insisted, it was a mistake to think that even the Nazis would entirely dispense with normal laws. After all, they had a complex, broadly capitalist economy to maintain. “A nation of 80 million people,” he noted, needs stable rules. The trick was to find a way to keep the law going for Christian Germans who supported or at least tolerated the Nazis, while ruthlessly executing the führer’s directives against the state’s enemies, real and perceived. Capitalism could jog nicely alongside the brutal suppression of democracy, and even genocide.
[…]
Today, we are witnessing the birth of a new dual state. The U.S. has long had a normative state. That system was always imperfect. Our criminal-justice system, for example, sweeps in far too many people, for far too little security in exchange. Even so, it is recognizably part of the normative state.
What the Trump administration and its allies are trying to build now, however, is not. The list of measures purpose-built to cleave off a domain in which the law does not apply grows by the day: the pardons that bless and invite insurrectionary violence; the purges of career lawyers at the Justice Department and in the Southern District of New York, inspectors general across the government, and senior FBI agents; the attorney general’s command that lawyers obey the president over their own understanding of the Constitution; the appointment of people such as Kash Patel and Dan Bongino, who seem to view their loyalty to the president as more compelling than their constitutional oath; the president’s declaration that he and the attorney general are the sole authoritative interpreters of federal law for the executive branch; the transformation of ordinary spending responsibilities into discretionary tools to punish partisan foes; the stripping of security clearances from perceived enemies and opponents; the threat of criminal prosecutions for speech deemed unfavorable by the president; and the verbal attacks on judges for enforcing the law.
The singular aim of these tactics is to construct a prerogative state where cruel caprice, not law, rules. By no measure does the extent of federal law displaced in the first few months of the Trump administration compare with the huge tracts of the Weimar’s legal system eviscerated by the Nazis. But it is striking how Donald Trump’s executive orders reject some basic tenets of American constitutionalism—such as Congress’s power to impose binding rules on how spending and regulation unfold—without which the normative state cannot persist.
[…]
Building a dual state need not end in genocide: Vladimir Putin’s Russia and Lee Kuan Yew’s Singapore have followed the same model of the dual state that Fraenkel described, though neither has undertaken a mass-killing operation as the Nazis did. Their deepest similarity, rather, is that both are intolerant of political dissent and leave the overwhelming majority of citizens alone. The peril of the dual state lies precisely in this capacity for targeted suppression. Most people can ignore the construction of the prerogative state simply because it does not touch their lives. They can turn away while dissidents and scapegoats lose their political liberty. But once the prerogative state is built, as Fraenkel’s writing and experience suggest, it can swallow anyone.
That genocide is not necessarily forthcoming provides some small comfort, I guess.
The sub-headline is “First thing we do, let’s intimidate all the lawyers.”
This is, of course, derived from a famous William Shakespeare quote, “The first thing we do, let’s kill all the lawyers”. Henry VI, Part 2, Act IV, Scene 2.
Per Wikipedia: the “line has been interpreted in different ways: criticism of how lawyers maintain the privilege of the wealthy and powerful; implicit praise of how lawyers stand in the way of violent mobs; and criticism of bureaucracy and perversions of the rule of law.”
Thus avoiding having popular discontent or resistance threaten the stability of the regime.
(E.g., it being best not to endanger people’s economic prospects).
So why do so many lawsuits filed against the felon’s capricious diktats keep winning in court?
Goddam collaborators.
Well, I was just looking at a list of partners at Paul, Weiss. It is quite the eye-opener. Here’s some of the current partners:
* Loretta Lynch – AG under Obama after Eric Holder.
* Jeh Johnson – Ran Homeland Security under Obama.
* Damian Williams – Was head of the SDNY US Attorney’s office. Brought the indictment of Eric Adams
* Melinda Haag – Former US Attorney for Northern District of California.
* Jeannie Rhee – Worked on Robert Mueller’s special counsel team investigating Russian influence.
On their list of notable alumni are Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, Jared Kushner(!), and Hakeem Jeffries.
…what are these guys thinking?
Perkins Coie sued rather than offer mountains of pro bono, etc. They aren’t nearly as connected as Paul, Weiss. Maybe Paul, Weiss is trying to preserve its status quo?
There has been a lot of chatter about seeking sanctions for Trump administration lawyers for their behavior before judges. Because it has not been very good.
So this looks like both a tit-for-tat, and also a move for credibility. If your lie is that “THEY are the cheaters!” you have to make it look good after all.
The simple phrase “Every accusation is a confession” seems to hold on any number of fronts.
I think we’ve buried the lede here. On March 14, Il Douche issue an executive order specifying punishments against a specific US company without alleging any particular crimes or otherwise seeking judicial relief first. Sentencing prior to trial. Even without getting into the problems with criminalizing political opposition, that should have triggered a nuclear response somewhere.
One of the country’s premier law firms chose to bend the knee and kiss the ring instead of taking a stand for the Constitution, which attorneys pledge an oath to support and defend.
NO ONE IS COMING TO SAVE US.
There is no John Adams or George Washington. No Abe Lincoln. No FDR. Not even an MLK.
Our nation is being remade and Chuck Schumer is on watch.
Yet another Vichy collaborator.
Even I am surprised at how quickly following the election and inaugration so many (like say … virtually all) of the elite companies, CEOs, and most wealthy enterprises in America have caved in, and ‘Anschlussed’ with Trump.
@charontw0(E.g., it being best not to endanger people’s economic prospects). The Dual State model works in the early days of a Dominionist plan but I’m sure the NAR faction will work towards full control of everything within a generation.
@Mr. Prosser:
That is their explicit ambition (“Seven Mountains”) but first they would need to overcome resistance and seize power.
It’s possible, too, other factions might have problems with that.
@charontwo: Other factions would definitely have problems with it. As was mentioned by Beth above, when trump becomes incapacitated the infighting will be long knives bloody, but like Douglas Adams’s Masters of Krikkit in H2G2, NAR people are really fixated and may very well win. Vance and Hegseth, if not NAR, are definitely fellow travelers.
@Mr. Prosser:
It’s impossible to know what these people really think/believe. I’m pretty sure there is a large segment of GOP funders, and therefore of GOP pros, who would see theocracy as a small price to pay for tax cuts and light regulation. They think whatever happens they’ll still be able to send their daughters and mistresses to Paris for a shopping spree and a scrape.
@gVOR10:
Good point. And they will be able to also. NAR will have little concern about what happens in “Godless” Europe, a.k.a. “Babylon the whore.”
@Mr. Prosser:
@gVOR10:
@Just nutha ignint cracker:
I don’t think that the Dominionist faction is the most fixated, just that they’ve had their eyes on a longer time scale and might be more unified in their ultimate goal. The problem is, and it’s consistent with all of these factions, is that the leaders all think they are the best and they hate each other as much as they hate the rest of us.
Trump’s power and usefulness is that he’s the glue that lets all these inconsistencies and rivalries pull in the same direction. I think Vought and Musk get this and that’s why they are willing to appear subservient.
The NAR goals are just as repulsive to everyone as the Techno Feudalists goals are. The MAGA goals overlap and intertwine with them in ways that makes it easier to smuggle in these repulsive plans. The head of MAGA goes down and the fight to succeed him will be stupid and bloody. MAGA won’t accept Vance, he’s not one of them. Musk maybe, but Jr. won’t accept that. NAR is going to demand to be in control and Musk and Thiel won’t accept that. This is going to end poorly for all of them because they are fanatic high on their own farts and the one thing Trump ABSOLUTELY will not do is name a successor. He can’t accept that. Hell, he’ll probably shiv a bunch of them as he goes down.
Also, and not to be a conspiracy theorist, but let’s acknowledge the bear in the room; which of these loonies will the Russians back? It’s probably in their interest to let chaos rip.
China is an example of this.
There is a normative state which enforces patents, property claims and governs the economic engine ensuring stability and predictability.
Alongside it is the prerogative state which can act ruthlessly in maintaining power.
@charontwo:
Via crippling tariffs, for instance?